WILLIAM KUANG TSAO, PETITIONER V. UNITED STATES OF AMERICA
No. 87-1794
In the Supreme Court of the United States
October Term, 1988
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit
Brief For The United States
TABLE OF CONTENTS
Question Presented
Opinion Below
Jurisdiction
Statement
Argument
Conclusion
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1-30) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on January 26,
1988. A petition for rehearing was denied on March 23, 1988. The
petition for a writ of certiorari was filed on April 29, 1988. The
jurisdiction of the Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether petitioner's detention at the Seattle airport was supported
by reasonable suspicion that he was engaged in narcotics trafficking.
STATEMENT
Following a bench trial in the United States District Court for the
Western District of Washington, petitioner was convicted of possession
of cocaine with the intent to distribute it, in violation of 21 U.S.C.
841(a)(1). He was sentenced to 10 years' imprisonment, to be followed
by a five-year special parole term. The court of appeals affirmed.
1. On October 21, 1986, officers patrolling the Miami International
Airport saw petitioner and his companion, Debbie Fine, approach the
United Airlines ticker counter. Both were casually dressed;
petitioner wore a great deal of gold jewelry and a gold,
diamond-studded Rolex watch. As the couple checked three of their
four suitcases, the officers noticed that Fine appeared to be under in
influence of narcotics and was having difficulty filling out the
luggage tags. Tr. 22-24, 41-42, 52, 60. /1/
After petitioner and Fine left the counter, the officers learned
from the ticket agent that petitioner was flying under the name "Mike
Lee"; that he and Fine had flown to Miami from Seattle on October 18
after having made their reservations the previous day; that they were
initially scheduled to return to Seattle via Denver on October 20;
and that their first-class tickets cost more than $2400. Petitioner
left a callback number with the airline, and the telephone at that
residence had been installed only that month. /2/ When one of the
officers called that number, a person with a Hispanic accent answered
the telephone and stated that there was no one named "Mike Lee" at
that location. When the officer said that she was from the airline, a
second person took the phone and stated that Lee had been there and
had left; after speculating that Lee had caught another plane, that
person hung up abruptly. The Miami police officers relayed that
information to officers in Seattle. The Seattle officers ran a
computer check on the names "Debbie Fine" and "Michael Lee." They
found nothing on Fine, but found an outstanding Canadian warrant for
the arrest of "Michael Robert Lee" on a charge of attempted
importation of cocaine into Canada. When the officers attempted to
verify the Washington address that petitioner had given the airline,
they found that the address corresponded to a building with private
"mail stops" or mail boxes, rather than a dwelling. Tr. 24-29, 32-48,
52, 56-66, 136-138, 151-153.
After a one-day delay in Denver due to bad weather, petitioner and
Fine arrived in Seattle on October 22, four days after they had left.
As they rode a tram to the baggage claim area, petitioner appeared
nervous and "was looking around." After petitioner had collected the
baggage, Seattle Detective Gregory Watts approached petitioner,
identified himself, and asked to speak with him. Petitioner agreed
(Tr. 70; Pet. App. 5-6). Upon a request for identification,
petitioner gave Watts an expired driver's license bearing the name
"William Tsao." After examining the license, the officer concluded
that petitioner was not the individual named in the Canadian warrant.
Detective Watts then asked to see petitioner's airline ticket. After
petitioner handed the ticket to the detective, Watts saw that it had
been purchased in the name "Michael Lee." Detective Watts then asked
petitioner if he was "Michael Robert Lee." Petitioner replied that he
was not. When the officer asked why he was traveling under the name
"Michael Lee," petitioner replied, "What seems to be the problem?"
(Tr. 71). Detective Watts asked petitioner if he would consent to a
search of his luggage, and petitioner replied that he wanted to speak
to an attorney first. Tr. 66-74, 136-143.
Meanwhile, another officer had moved petitioner's luggage to
another area within the airport. There, the officer had the luggage
examined by a narcotics detection dog, and the dog alerted to one of
the bags. At that point, approximately 15 minutes had elapsed since
the initial contact with petitioner, and five minutes since the bags
were removed for examination by the dog. After the officers advised
petitioner of the results of the examination, petitioner again said
that he wanted to speak to an attorney. Petitioner was then escorted
to an office within the terminal, were he was permitted to call a
lawyer. As petitioner was making his call, the officers conferred and
decided that they had probable cause to arrest him. At the conclusion
of petitioner's call, the officers arrested petitioner, searched him,
and found a bundle of cocaine on his person. Thereafter, the officers
obtained a search warrant for petitioner's suitcase. A search of the
suitcase revealed two kilograms of cocaine. Tr. 74-82, 143-147,
170-172.
2. The district court denied petitioner's motion to suppress the
cocaine as the fruit of an illegal detention (TR. 259). The court
held that the initial encounter between petitioner and the Seattle
officers was consensual. In addition, the court held that hte fact
that the officers retained petitioner's expired license and cancelled
ticket did not tranform the encounter into a seizure, because
petitioner's trip was completed and the license was no longer valid.
The retention of those documents therefore did not impede petitioner
in the event that he wanted to leave. In any event, the court found
that the agents had ample justification for a Terry stop. Tr.
127-132, 255-256, 265-273.
3. The court of appeals affirmed. Pet. App. 1-30. It held that
the initial contact between petitioner and the officers at the Seattle
airport was consensual. Id. at 15-18. The encounter did not ripen
into a Terry stop, the court held, until the officers asked petitioner
for consent to search his luggage. By that time, however, the
officers had reasonable suspicion that petitioner was in possession of
narcotics, which justified the brief detention of petitioner's luggage
for examination by a narcotics detection dog. Id. at 19-21. Once the
dog alerted, the officers had probable cause to arrest petitioner, the
court held, and the officers could therefore search him incident to
his arrest. Id. at 21. /3/
ARGUMENT
Petitioner argues that he was seized when Detective Watts
approached him at the Seattle Airport and that his seizure was not
supported by reasonable suspicion.
The initial encounter between petitioner and the Seattle officers
did not amount to a seizure under the Fourth Amendment. Without
physically restraining petitioner or displaying a weapon, Detective
Watts asked petitioner for permission to speak to him, and petitioner
agreed. Detective Watts then asked petitioner for some identification
and his airline ticket, and petitioner handed the detective an expired
driver's license and his cancelled airline ticket. That type of
consensual police-citizen encounter does not amount to a "seizure"
under the Fourth Amendment. INS v. Delgado, 466 U.S. 210, 216-217,
219-221 (1984); Florida v. Royer, 460 U.S. 491, 497, 501 (1983)
(plurality opinion); United States v. Mendenhall, 446 U.S. 544,
533-556 (1980) (opinion of Stewart, J.); see Michigan v. Chesternut,
No. 86-1824 (June 13, 1988), slip op. 5-8; Terry v. Ohio, 392 U.S. 1,
19 n.16 (1968).
Petitioner does not disagree. Rather, he contends (Pet. 10) that
he was seized when Detective Watts did not return his airline ticket
and driver's license after examining them, when he was not immediately
allowed to use a nearby telephone to contact a lawyer, and when his
luggage was briefly held so that it could be examined by a narcotics
detection dog. /4/ By that time, however, the officers had reasonable
suspicion that petitiner may have been involved in narcotics
trafficking.
The officers knew the following facts by the time they moved
petitioner's luggage from the cart so that it could be examined by a
narcotics detection dog: (1) petitioner had spent more than $2400 on
round-trip tickets from Seattle to Miami, a major source city for
narcotics; (2) petitioner and his companion had stayed in Miami only
two days, even though the round trip between Seattle and Miami is
about 6000 miles; (3) petitioner's companion appeared to be under the
influence of narcotics when she was filling out the baggage claim
tickets; (4) petitioner was not known by the first person who
answered the telephone at the callback number that petitioner had
given the airline, and the reply given by the second person who
answered the call was suspicious; and (5) petitioner was traveling
under an assumed name, he offered no explanation for doing so, and he
nervously looked around the Seattle terminal after he had deplaned.
This Court and the courts of appeals have recognized that factors
such as those are indicative of narcotics trafficking. See, e.g.,
Florida v. Royer, 460 U.S. at 502 (plurality opinion); United States
v. Mendenhall, 446 U.S. at 564-565 (opinion of Powell, Jr.); United
States v. Whitehead, No. 87-5093 (4th Cir. May 24, 1988), slip op. 20;
United States v. Hanson, 801 F.2d 757, 761-763 (5th Cir. 1986);
United States v. Ilazi, 730 F.2d 1120, 1124 (8th Cir. 1984). An
experienced narcotics officer viewing the whole picture (see United
States v. Cortez, 449 U.S. 411, 417 (1981)) could reasonably infer
from those facts that petitioner was bringing narcotics back to
Seattle from Miami. Accordingly, the Seattle police officers had
sufficient grounds for briefly detaining petitioners' luggage so that
it could be examined by the narcotics detection dog. Once the dog
alerted to the presence of narcotics, the officers had probable cause
to arrest petitioner and to search his person. See United States v.
Robinson, 414 U.S. 218 (1973).
Although we believe that the court of appeals' ruling was correct,
this Court may nonetheless wish to hold this case pending its decision
in United States v. Sokolow, cert, granted, No. 87-1295 (June 6,
1988). In that case, the Ninth Circuit adopted a new two-part test
for determining reasonable suspicion in the airport context. That
test requires that before a law enforcement officer may make a Terry
stop of a suspected drug courier traveling through an airport, the
officer must be able to point to direct evidence that the suspect is
involved in narcotics trafficking, and the officer must be able to
supply empirical or statistical proof that the circumstantial evidence
on which he relies does not also characterize a large number of
innocent travelers. Some of the facts in this case are similar to
those in Sokolow, /5/ but there also are some differences. For
example, there was an obvious discrepancy between the name petitioner
used for his airline ticket and the name of petitioner's expired
driver's license. That fact appears to be the type of direct proof of
narcotics smuggling that the Ninth Circuit found critical to the
reasonable suspicion determination in Sokolow. Accordingly, the
judgment in this case may survive even if this Court in Sokolow were
to endorse the Ninth Circuit's two-part reasonable suspicion test.
That is particularly true in light of the fact that the decision below
was handed down by the Ninth Circuit, which decided Sokolow, and the
fact that the court of appeals even cited its earlier decision in
Sokolow in the court's unpublished opinion in this case. Pet. App.
15, 21. Nevertheless, this Court's decision in Sokolow could
potentially affect the disposition of this case. We therefore do not
oppose holding the petition in this case pending the decision in
Sokolow.
CONCLUSION
The petition for a writ of certiorari should be held pending the
Court's decision in United States v. Sokolow, cert. granted, No.
87-1295 (June 6, 1988), and then disposed of as appropriate in light
of that decision.
Respectfully submitted,
CHARLES FRIED
Solicitor General
EDWARD S.G. DENNIS, JR.
Acting Assistant Attorney General
PATTY MERKAMP STEMLER
Attorney
JULY 1988
/1/ "Tr." refers to the transcript of the hearing on petitioner's
motion to suppress evidence.
/2/ Miami Police Officer Jody Wolfe testified that the date of
installation was significant because narcotics dealers change their
addresses and phone numbers frequently. Tr. 44-45.
/3/ The court also upheld the warrant-authorized search of
petitioner's luggage. The court rejected his claim that the
supporting affidavit contained material factual misrepresentations.
Pet. App. 22-25.
/4/ Petitioner points out (Pet. 5-6, 11) that the officers would
have arrested petitioner had he attempted to leave the airport at that
point. That fact is immaterial, however, because petitioner did not
attempt to leave, the officers did not arrest him at that point, and
they did not communicate their intentions to him. Accordingly, the
officers' intentions did not transform their investigative detention
into a full-scale arrest. See Michigan v. Chesternut, slip op. 7 n.7.
/5/ Both Sokolow and petitioner were young; they both made brief
round trips over long distances to Miami; each suspect paid more than
$2000 for a pair of round-trip tickets, which were purchased on short
notice; in each case; the officers had reason to believe that the
suspect was traveling under a false name; and both men nervously
looked around the airport terminal.